Florida Expungements and Predicate Sexual Offenses

Effective October 1, 2019

Effective on October 1, 2019, this has been codified within section 943.0584, Florida Statutes.

Effective in 2007, Florida Law 2006-176 added language to Florida’s expungement and sealing statutes that expanded the list of prohibited offenses to include all sexual offenses designated by the Florida Legislature. Unfortunately, the added language does not specify these offenses, but rather, simply refers to additional statutes. The specific language of concern is:

any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be sealed

In order to know what these offenses are requires researching the statutes referred to in the text.

Effect of Added Statutory Language

This article will answer the question on what effect the language, added in both the Florida Expungement and Florida Sealing Statute, has on a person trying to seal or expunge their criminal record.

Florida Law 2006-176, Sexual Motivated Offenses

Florida law 2006-176 addressed several related issues. This article will only address the additional language, noted above, added to both sections 943.0585 and 059 (the expungement and sealing statutes, respectively).

The first step we must undertake is to breakdown the grammar into its component parts for a better understanding. Although both the expungement and sealing statute are almost identical, the added language from Florida Law 2006-176 is identical.

or any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, without regard to whether that offense alone is sufficient to require such registration, or for registration as a sexual offender pursuant to s. 943.0435, may not be [expunged/sealed], without regard to whether adjudication was withheld, if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act.

Section 775.21, Fla. Stat. [Sexual Predator]

So let’s break it down so that we can understand more clearly the meaning of the language. The first phrase directs us to “any violation” specified as a “predicate offense for registration” pursuant to section 775.21, Florida Statutes. It does not matter whether the disposition was a conviction or the court withheld the conviction (see Differences between Adjudication and the Withhold of Adjudication). Those violations listed in s. 775.21, Fla. Stat., are:

The Predicate Offenses

A capital, life, or first degree felony violation, or any attempt thereof, of
s. 787.01 – Kidnapping; kidnapping of child under age 13, or
s. 787.02 – False imprisonment; false imprisonment of child under age 13, where the victim is a minor, or
s. 794.011 – Sexual battery,
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, or
s. 847.0145 – Selling or buying of minors, or
a violation of a similar law of another jurisdiction; or
Any felony violation, or any attempt thereof, of
s. 393.135(2) – A covered person (Public Health) who engages in sexual misconduct with an individual with a developmental disability;
s. 394.4593(2) – An employee (Public Health) who engages in sexual misconduct with a patient;
s. 787.01 – Kidnapping; kidnapping of child under age 13,
s. 787.02 – False imprisonment; false imprisonment of child under age 13, or
s. 787.025(2)(c) – A person 18 years of age or older who, having been previously convicted of a violation of chapter 794, s. 800.04, or s. 847.0135(5), or a violation of a similar law of another jurisdiction, intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or conveyance for other than a lawful purpose, where the victim is a minor;
s. 787.06(3) – Any person who knowingly, or in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human trafficking, or benefits financially by receiving anything of value from participation in a venture that has subjected a person to human trafficking, (b) Using coercion for commercial sexual activity of an adult, (d) Using coercion for commercial sexual activity of an adult who is an unauthorized alien, (f) for commercial sexual activity who does so by the transfer or transport of any child under the age of 18 from outside this state to within the state, or (g) for commercial sexual activity in which any child under the age of 18, or in which any person who is mentally defective or mentally incapacitated; former s. 787.06(3)(h);
s. 794.011 – Sexual battery, excluding s. 794.011(10) – A person who falsely accuses a person;
s. 794.05 – A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age; former s. 796.03; former s. 796.035;
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
s. 810.145(8)(b) – Video Voyeurism, a person who violates this subsection and who has previously been convicted of or adjudicated delinquent for any violation of this section;
s. 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person;
s. 827.071 – Sexual performance by a child;
s. 847.0135, – Computer pornography; prohibited computer usage; traveling to meet minor excluding s. 847.0135(6) – owner or operator of a computer online service, Internet service, or local bulletin board service;
s. 847.0145 – Selling or buying of minors;
s. 895.03 – Racketeering, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-subparagraph or at least one offense listed in this sub-subparagraph with sexual intent or motive;
s. 916.1075(2) – An employee, volunteer, or intern [or contractor] who engages in sexual misconduct with a forensic client who resides in a civil or forensic facility; or
s. 985.701(1) – [Juvenile Justice] An employee who engages in sexual misconduct with a juvenile offender; or
a violation of a similar law of another jurisdiction, and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of
s. 393.135(2) -Sexual misconduct prohibited; reporting required (Corrections);
s. 394.4593(2) – Sexual misconduct prohibited; reporting required (Juvenile Justice);
s. 787.01 – Kidnapping; kidnapping of child under age 13,
s. 787.02 – False imprisonment; false imprisonment of child under age 13, or
s. 787.025(2)(c) – Luring or enticing a child, a person 18 years of age or older who, having been previously convicted of a violation of chapter 794, s. 800.04, or s. 847.0135(5), where the victim is a minor;
s. 787.06(3) – Any person who knowingly, or in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human trafficking, or benefits financially by receiving anything of value from participation in a venture that has subjected a person to human trafficking, (b) Using coercion for commercial sexual activity of an adult, (d) Using coercion for commercial sexual activity of an adult who is an unauthorized alien, (f) for commercial sexual activity who does so by the transfer or transport of any child under the age of 18 from outside this state to within the state, or (g) for commercial sexual activity in which any child under the age of 18, or in which any person who is mentally defective or mentally incapacitated; former s. 787.06(3)(h);
s. 794.011 – Sexual battery, excluding s. 794.011(10) – A person who falsely accuses a person;
s. 794.05 – A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age; former s. 796.03; former s. 796.035;
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
s. 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person;
s. 827.071 – Sexual performance by a child;
s. 847.0133 – Protection of minors; prohibition of certain acts in connection with obscenity;
s. 847.0135, – Computer pornography; prohibited computer usage; traveling to meet minor excluding s. 847.0135(6) – owner or operator of a computer online service, Internet service, or local bulletin board service;
s. 847.0145 – Selling or buying of minors;
s. 895.03 – Racketeering, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-subparagraph or at least one offense listed in this sub-subparagraph with sexual intent or motive;
s. 916.1075(2) – An employee, volunteer, or intern [or contractor] who engages in sexual misconduct with a forensic client who resides in a civil or forensic facility; or
s. 985.701(1) – [Juvenile Justice] An employee who engages in sexual misconduct with a juvenile offender; or
a violation of a similar law of another jurisdiction;

The next line is “without regard to whether that offense alone is sufficient to require such registration[.]” This phrase removes the requirements, found within the above-noted statute, that are necessary for a person to have to register as a sexual predator. In short, if a person has been found guilty of any of the above offenses, they cannot seal or expunge that record.

Section 943.0435, Fla. Stat. [Sexual Offender]

The next line states “or for registration as a sexual offender pursuant to s. 943.0435[, Fla. Stat.]” Here, the statute requires that an offense (listed below) that requires the person to register as a sexual offender is ineligible to be sealed or expunged under Florida law. This statute contains the following offenses:

Has been convicted of committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction:
s. 393.135(2) – [Public Health] A covered person (employee, paid staff member, volunteer, or intern of the agency; any person under contract with the agency; and any person providing care or support to a client on behalf of the agency or its providers) who engages in sexual misconduct with an individual with a developmental disability;
s. 394.4593(2) – [Mental Health] An employee (includes any paid staff member, volunteer, or intern of the department; any person under contract with the department; and any person providing care or support to a client on behalf of the department or its providers) who engages in sexual misconduct with a patient;
s. 787.01 – Kidnapping; kidnapping of child under age 13,
s. 787.02 – False imprisonment; false imprisonment of child under age 13, or
s. 787.025(2)(c) – A person 18 years of age or older who, having been previously convicted of a violation of chapter 794, s. 800.04, or s. 847.0135(5), or a violation of a similar law of another jurisdiction, intentionally lures or entices, or attempts to lure or entice, a child under the age of 12 into a structure, dwelling, or conveyance for other than a lawful purpose, where the victim is a minor;
s. 787.06 Human Trafficking (b) – Using coercion for commercial sexual activity of an adult, (d) – Using coercion for commercial sexual activity of an adult who is an unauthorized alien, (f) – commercial sexual activity who does so by the transfer or transport of any child under the age of 18 from outside this state to within the state, or (g) – commercial sexual activity in which any child under the age of 18, or in which any person who is mentally defective or mentally incapacitated as those terms are defined in s. 794.011(1); former s. 787.06(3)(h);
s. 794.011 – Sexual Battery, excluding s. 794.011(10);
s. 794.05 – Unlawful sexual activity with certain minors; former s. 796.03; former s. 796.035;
s. 800.04 – Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age;
s. 810.145(8) – Video Voyeurism; A person who is eighteen years of age or older who is responsible for the welfare of a child younger than 16 years of age, regardless of whether the person knows or has reason to know the age of the child;
s. 825.1025 – Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person;
s. 827.071 – Sexual performance by a child;
s. 847.0133 – Protection of minors; prohibition of certain acts in connection with obscenity;
s. 847.0135 – Computer pornography; prohibited computer usage; traveling to meet minor, excluding s. 847.0135(6);
s. 847.0137 – Transmission of pornography by electronic device or equipment prohibited;
s. 847.0138 – Transmission of material harmful to minors to a minor by electronic device or equipment prohibited;
s. 847.0145 – Selling or buying of minors;
s. 895.03 – Racketeering, if the court makes a written finding that the racketeering activity involved at least one sexual offense listed in this sub-sub-subparagraph or at least one offense listed in this sub-sub-subparagraph with sexual intent or motive;
s. 916.1075(2) – Sexual misconduct prohibited; A covered person (an employee, volunteer, or intern of the department or agency; any person under contract with the department or agency; and any person providing care or support to a forensic client on behalf of the department, the agency, or their providers) who engages in sexual misconduct with a forensic client who resides in a civil or forensic facility; or
s. 985.701(1) – Sexual misconduct prohibited; Juvenile Justice Employee (paid staff members, volunteers, and interns who work in a department program or a program operated by a provider under a contract) with juvenile offender; or
any similar offense committed in this state which has been redesignated from a former statute number to one of those listed in this sub-sub-subparagraph; and
Has been released on or after October 1, 1997, from the sanction imposed for any conviction of an offense [listed above].

Although most of these offenses are similar to the offenses listed in section 775.21, Florida Statutes, there are slight nuances that, if argued before a court, would require more research.

Shall Not Be Sealed or Expunged if…

The last part of the wording is not new. It states that these sexual offenses may not be expunged/sealed even if adjudication of guilt was withheld, “if the defendant was found guilty of or pled guilty or nolo contendere to the offense, or if the defendant, as a minor, was found to have committed, or pled guilty or nolo contendere to committing, the offense as a delinquent act.”

This language specifically prohibits the sealing of any sexually motivated offense listed regardless of if the disposition was a withhold of adjudication (rather than a conviction – see the differences between a conviction and a withhold of adjudication). It also prohibits an expungement if the disposition was withheld. This requires explanation:

Expungements and Adjudication Withheld

Any sexual offense that results is the dismissal, dropping, or acquittal of all charges can be immediately expunged. This includes all of the offenses listed above. The language excluding expungements would affect only above-listed offenses if the disposition was a withhold of adjudication and the petitioner had previously sealed the record and was now attempting to expunge the record after waiting the required 10-years.

Effect of Statutory Language

The additional language added through Florida Law 2006-176 expanded the range of prohibited offenses to include all sexually motivated crimes. It specifically refers to statutes that list offenses, with specificity, that will now be prohibited from being sealed or, if previously sealed, from being expunged. It also makes any additional offenses that the legislature adds to these statutes automatically prohibited from sealing or, if previously sealed, from being expunged, without requiring any amendment to the expungement (s.943.0585, Fla. Stat.) or sealing (s.943.059, Fla. Stat.) statutes. Prior to this, the only other section that did this was the reference to section 907.041, Florida Statutes (Dangerous Crimes).

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Please note the date this article was published. The information listed above is subject to change as changes are made to the laws. The information written above is meant only to be for Informational Purposes Only and is not legal advice.

Eric Dirga has been a member of the Florida Bar since 1995. His office is Eric J. Dirga, PA, located in Orlando, FL. He provides legal representation for expungement and sealing of records throughout the state of Florida.

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